Arbitration SG JRO 9-22-03

8/3/2019 Arbitration SG JRO 9-22-03

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The Basics ofArbitration

Susan Tsui Grundmann

NFFE General Counsel

Modified for NFFE-FSC

Reno Training by J.R. ObstOctober, 2003


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What is Arbitration?

.

A process of dispute resolution in

which a third party neutral(arbitrator) renders a decision after

a hearing at which both parties

have an opportunity to be heard.


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What can an Arbitrator do?

An Arbitrator is empowered only toresolve the issues submitted. The scopeof this ability is defined by the collectivebargaining agreement (CBA), the issue as

defined by the parties, and law.


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What Arbitration is not.

Not an agency procedure.

Not a court of law. Not an administrative forum (EEOC,

MSPB).

Does not exist outside the CBA.


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Union Goals in Arbitration

Prove our case.

Answer the

agencys case.


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Proving Our Case

Facts.

Contract or MOU language.

Law, rule or regulation. Parties intent.

Past practice.

Practice of other units within Agency.

Equity.

Arbitration precedent.


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Prior to Arbitration

Re-evaluate facts.

Re-evaluate any threshold issues.

Re-evaluate remedy requested.

Interview potential witnesses.

Review all documents.

Review relevant agency policies, orders and regs.

Request information and review agency response.

Review previous related issues and facts.

Fulfill any bylaw requirements.


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Selecting an Arbitrator

Collective Bargaining Agreement language

is controlling.

Past Practice. Contact the Federal Mediation and

Conciliation Service (FMCS) for a panel of

arbitrators at www.fmcs.gov.
http://www.fmcs.gov/http://www.fmcs.gov/


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Selecting an Arbitrator

Review arbitrators qualifications and their

biographical sketches; ask for some written

decisions. Review list with NFFE National.

Choose arbitrator in accordance with the CBA.

Notify the FMCS of arbitrator selection.

Arrange hearing date with arbitrator and mgmt.


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Preparing Case for Arbitration

If there is an outstanding info request/ ULP,postpone the hearing if you believe the info isnecessary to present your case.

Gather all information needed to present case. Identify witnesses and interview them. Know

what they will say in arbitration.

Make copies of all documents for arbitrator and

for Management.

Determine what information and facts can bestipulated in conjunction with management.


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Pre-Hearing Conference

Joint Exhibits.

Joint Stipulations. Definition of Issue.

Appearance and Availability of Witnesses.

Housekeeping.


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Joint Exhibits

Joint exhibits are documents and other evidence

for which the parties agree that authentication andfoundation are notrequired.

Joint exhibits may be documents that are

contested in terms of weight and veracity.

Exhibits that are notjoint may be introducedseparately by either party with proper

authentication and foundation.


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Examples of Joint Exhibits

Collective bargaining agreement.

Grievance package. Relevant agency regulations, policies and

orders.

Copies of statutory regulations.


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Joint Stipulations

Joint stipulations are facts that are agreed toby the parties.

An arbitrator cannot deviate from jointlystipulated facts and issues.

Parties cannot argue contrary to jointstipulations.

Reduces the complexity of the hearing.Do not stipulate to damaging facts!


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Examples of Joint Stipulations

Names, dates, events.

Past practice. Agency actions and underlying intent.

Issues.


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Defining the Issue

Disciplinary cases: Do the facts support thecharges? If so, is the discipline appropriate? If

not, what is the remedy?Contractual cases: Did the agency violate ArticleXXX of the CBA when it . . . ? If so, what is theappropriate remedy?

Regulatory/statutory cases: Did the agencyviolate XXX when it . . . .? If so, what is theappropriate remedy?


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Issue Definition: Lessons Learned

Question format.

Request remedy. Do not deviate from existing language.

Jointly Stipulated v. Union Submission.


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Housekeeping

When and where.

Room set up.

Scheduling requirements (official time). Equipment (telephone, flip chart, computer).

Sequestering witnesses.

Recorder/stenographer ($$$). Observers.


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Arbitration Hearing

Formal hearing. Witnesses are generally

sworn in.

Arbitration consists of:

Opening statementStipulated facts and documents

Written evidence from each party

Witness testimony

Final closing (oral and/or written) Party with burden of proof presents first:

In personnel actions, including discipline, theAgency presents case first.

In other cases, the Union presents case first.


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Arbitration Hearing

Dont fight with the arbitrator.

Dont waste the arbitrators time

fighting with management.You are there to convince the arbitrator,

not management.

Settlement may be negotiated at any timeuntil receipt of arbitrators decision.

You know what you get!


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Opening Statement

State the case in one sentence.

Provide a roadmap for the arbitrator.

State undisputed facts.

State pertinent contractual or regulatory language.

Highlight strength of your case.

Briefly address weaknesses.

State remedy requested.


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Witnesses

A witness must be qualified,straightforward, and credible.


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Interviewing Witnesses

Interview early and before the hearing.

Prepare questions.

Review documents.

Discuss weaknesses in testimony.

Discuss possible cross examination .

Ethics.


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Guidance for Witnesses

Answer the question asked.

Do not volunteer information!

I dont know.

Be alert.

Be courteous.

Talk to the arbitrator.

How to handle objections.


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Direct Examination

Have your witness introduce him/herself:

Name and address.

Employment, past and present.Basis of knowledge of the grievance.

Note: Expert witnesses must be qualified

as such before testifying. No leading questions.


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Documents

A document must

be in the record

to be considered.


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Getting Documents In

Stipulation

Authentication

Foundation


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Preparing Documents for the Record

Read it. All of it!

Label it.

Who will introduce it?

What will they say about it?

Anticipate cross-examination.


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Evidence Standards.1. Disciplinary and adverse actions.

Preponderance of evidence (51%):

The degree of relevant evidence that a reasonable

person, considering the record as a whole, would

accept as sufficient to find that a contested fact is

more likely to be true than untrue. (1201.56(c)(2) 5

CFR)

A standard of proof which is met when a partys

evidence on a fact indicates that it is more likely thannot that the fact is as the party alleges it to be.

(Blacks Law, Fifth Edition)


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Evidence Standards.2. Unsatisfactory performance actions.

Substantial evidence:

The degree of relevant evidence that a reasonable

person, considering the record as a whole, mightaccept as adequate to support a conclusion, even

though other reasonable persons might disagree.

(1201.56(c)(1) 5 CFR)

Such evidence that a reasonable mind might acceptas adequate to support a conclusion. (Blacks Law,

Fifth Edition)


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Introducing Documents

Laying the proper foundation.- show document;

- identify document and its source;- discuss document;

- move to admit document;

- address any objections through argument;- move to admit.


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Arbitration Hearing

You may object to questions and

answers from other side:

Hearsay;Goes against stipulations;New evidence never presented before;Irrelevant to case at hand.


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Arbitration Hearing

When asking your witnesses questions,

be sure you know the answer before you

ask. (Prepare witnesses before hearing,so you know what they know.)

When cross examining management

witnesses, ask yes-no questions. Do notask WHY or open-ended questions.


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Cross Examination Objectives

To discredit the witness direct testimony.

To highlight conflicting testimony.

To produce affirmative testimony.


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Cross Examination Techniques

Questions based on unrefutted fact anddocuments.

Impeachment (challenge and discredit).

Build on and relate back to previous testimony. Dont ask a question if you dont know the

answer.

Use leading questions.

Know when to stop.


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Handling Objections

Relevancy.

Hearsay.

Foundation required

Assumes facts not in evidence.

Witness qualification.

Testimony based on excluded evidence. Surprise/bad faith.

Asked and Answered.


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The Goals of Arbitration

Prove your case.

Answer your opponents case.


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Answering Managements Case

Unclear testimony from agency witnesses.

Incomplete testimony.

Contradictory testimony.

Hearsay or opinion.

Introduction of new evidence.


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Common Errors in Case Presentation

Relying on minimum facts and maximum

argument.

Concealing facts and distorting truth. Delaying through legal technicalities.

Failing to cooperate with the arbitrator.

Disregarding decorum and courtesy. Being argumentative with the other party.


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Closing Statement

In lieu of a post-hearing brief.

Review facts presented.

Respond to points against your case.

State the Agencys case and how evidence fails

to support Agencys suggested outcome.

Restate the issue and remedy sought.

Argue for your outcome. Cite previous decisions.


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Standards Applied in Contract

Interpretation Cases

The Union bears the

burden of proof.


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Standards Based on Contract Language

Clear and Unambiguous.

Specific language vs. general terms.

The agreement construed as a whole.

Normal and technical term usage.


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Standards Going Beyond the Contract

Intent of the parties.

Bargaining history. Compromise offers.

Past practice (reasonable, uniform and

recurring over a substantial period of time). Language construed against the drafter.


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Standards Applied in

Disciplinary Cases

The Agency bears theburden of proof.


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Mitigation of Penalty

(Douglas Factors) Forewarned is forearmed.

Management investigation.

Substantial evidence rule.

Fair and equitable. Mitigating circumstances.

Inconsistent enforcement of rules.

Rehabilitation. Punishment befits the crime.

Procedural deficiencies.


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Post Decision Procedures

Watch your timeframe!

Once the decision comes out, there

are limitations on post judgment

process.


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The Union Prevails

Enforcement

An unfair labor practice may be filed under 5

U.S.C., Section 7116 within 6 months of the

date of service of the award.

Agency Appeals

The Agency can only file exceptions to the

FLRA on arbitration awards which do notinvolve an adverse action.


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The Agency Prevails

Cases other than disciplinary issues.Exceptions must be filed with the FLRA within30 days of date of service of the award.

Disciplinary but non-adverse actions.

Exceptions must be filed with the FLRA within30 days of the date of service of the award.

Adverse actions.Appeals can only be filed with the U.S. Court of

Appeals for the Federal Circuit.


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Exceptions to arbitration awards.

Exceptions are only sustained for very

narrow reasons: generally, arbitrators

decision is a violation of law.


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Recovery of attorney fees.

No requirement to raise the issue during

the grievance process. Can do so in

arbitration. 5 USC 7701(g) is the prevailing standard.

Attorney fees may also be recovered in

EEO and MSPB complaints.


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Attorney fees are warranted in the interests

of justice if one of the following applies:

Agency committed a Prohibited PersonnelPractice;

Agency action was:

- clearly without merit;- wholly unfounded;

- or the employee is substantially innocent;

Agency action initiated in bad faith (e.g..,

harassment); Agency committed a gross procedural error;

Agency knew, or should have known, that itwould not prevail.

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